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management
Services
incorporated

deliverables

in Phase 2, we will deliver a Powerpoint summary of the work, in addition to an Excel-based space
program and capital budget, site analysis drawings, Excel-based pro-forma operating budgets,
research on operating comparables, economic impact multipliers, and other supporting data.
timeline

We would anticipate completing this work over a three-month period, subject to timely review of
materials and the scheduling of presentations,

fee proposal

We propese professional fees of $27,000, including expenses, ta complete the second phase of
work, broken down as follows:

Phase Two, Part 1: $15,000
Phase Two, Part 2: $12,000
Total Fees: $27,000

We will bill the City monthly based on the progress of the study.

Yours sincerely,

Duncan M. Webb, President
Webb Management Services, Inc.

Agreed and accepted this___ dayof_____, 2016

By
City of Nashua

CONTRACT FOR PROFESSIONAL SERVICES

NASHUA PERFORMING ARTS CENTER FEASIBILITY STUDY:
PHASE

A CONTRACT BETWEEN

THE CITY OF NASHUA, 229 MAIN STREET, NASHUA, NH 03061-2019

AND

WEBB MANAGEMENT SERVICES, INC.

NAME OF CONSULTANT

350 FIFTH AVENUE, SUITE 4005, NEW YORK, NH 10118

ADDRESS OF CONSULTANT

-WHEREAS, the City of Nashua, a political subdivision of the State of New Hampshire, from time
to time requires the services of a Consultant; and

WHEREAS, it is deemed that the services of a Consultant herein specified are both necessary and
desirable and in the best interests of the City of Nashua; and

WHEREAS, Consultant represents they are duly qualified, equipped, staffed, ready, willing and
able to perform and render the services hereinafter described;

Now, THEREFORE, in consideration of the agreements herein made, the parties mutually agree as
follows:

1. DOCUMENTS INCORPORATED. The following exhibits are by this reference incorporated herein and
are made part of this contract:

Exhibit A--General Conditions for Contracts
Exhibit B--Scope of Services, Contract Time, Fee Schedule

The Contract represents the entire and integrated agreement between the parties and supersedes prior
negotiations, proposals, representations or agreements, either written or oral. Any other documents which
are not listed in this Article are not part of the Contract.

_ In the event of a conflict between the terms of the Proposal and the terms of this Agreement, a written
change order and/or fully executed City of Nashua Purchase Order, the terms of this Agreement, the
written change order or the fully executed City of Nashua Purchase Order shall control over the terms of
the Proposal.

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‘ PERFORMED Except as otherwise provided in this contract, Consultant shall furnish all
servic siment, and materials and shall perform all operations necessary and required to carry out
ecordance with the terms and conditions of the contract the work described.

°RFORMANCE. Consultant shall perform and complete all work within the time periods
y only be altered by the parties by a written agreement to extend the period of
periosmancs or oy termination in accordance with the terms of the contract. Consultant shall begin
performance upon receipt of an Executed Contract and a valid Purchase Order issued from the City of
Nashua.

4. COMPENSATION. Consultant agrees to perform the work for a total cost not to exceed
Twenty-Seven Thousand Dollars ($ 27,000)

which, unless otherwise provided in this contract, shall be paid in accordance with the provisions of
Exhibit B or unless Consultant has received a written exemption from the City of Nashua. Consultant
shall submit monthly requests for payment for services performed under this agreement directly to

City of Nashua

Attn: Accounts Payable
PO Box 2019

Nashua, NH 03061-2019
Atten:

To facilitate the proper and timely payment of applications, the City of Nashua requires that all
invoices contain a valid PURCHASE ORDER NUMBER.

Requests for payment shall be submitted no later than fifteen (15) days after the end of each month and
must include a detailed summary of the expenditures reported in a form that supports the approved
budget. Specifically, Consultant agrees to provide the following with each request for payment:

1. Appropriate invoice forms. The forms shall include the project purchase order number, a
listing of personnel hours and billing rates, and other expenditures for which payment is sought.

2. A progress report. The report shall include, for each monthly reporting period, a description
of the work accomplished, problems experienced, upcoming work, any extra work carried out,
and a schedule showing actual expenditures billed for the period, cumulative total expenditures
billed and paid to date under the contract, and a comparison of cumulative total expenditures
billed and paid to the approved budget.

The City of Nashua will pay for work satisfactorily completed by Consultant. The City of Nashua will
pay Consultant within 30 days of approval by the City of Nashua of the submitted invoice forms and
progress reports. The City of Nashua will make no payments until the invoice forms and progress reports
have been submitted and approved.

5, EFFECTIVE DATE OF CONTRACT. This contract shall not become effective until and unless approved
by the City of Nashua.

6. NOTICES. All notices, requests, or approvals required or permitted to be given under this contract

shall be in writing, shall be sent by hand delivery, overnight carrier, or by United States mail, postage
prepaid, and registered or certified, and shall be addressed to:

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CITY OF NASHUA REPRESENTATIVE:

Tim Cummings

Economic Development Director
City Hall, 229 Main Street
Nashua, NH 03060

REPRESENTATIVE:

Duncan Webb

Webb Management Services, Inc.
350 Fifth Avenue, Suite 4005
New York,NH 10118

Any notice required or permitted under this contract, if sent by United States mail, shall be deemed to be
given to and received by the addressee thereof on the third business day after being deposited in the mail.
The City of Nashua or Consultant may change the address or representative by giving written notice to

the other party.

IN WITNESS WHEREOF, the parties hereto have caused this contract to be signed and intend to be legally

bound thereby.

‘City of Nashua, NH (signature)

James Donchess, Mayor
(Printed Name and Title)

Date

(signature)

(Printed Name and Title)

Date

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EXHIBIT A
TABLE OF CONTENTS
GENERAL CONDITIONS

DEFINITIONS

CONSULTANT STATUS

STANDARD OF CARE

CITY OF NASHUA REPRESENTATIVE
CHANGES TO SCOPE OF WORK
CITY OF NASHUA COOPERATION

DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR
DISCREPANCIES

TERMINATION OF CONTRACT

DISPUTE RESOLUTION

NO DAMAGES FOR DELAY

INSURANCE

INDEMNIFICATION

FISCAL CONTINGENCY

COMPENSATION

COMPLIANCE WITH APPLICABLE LAWS
NONDISCRIMINATION

ENDORSEMENT

ASSIGNMENTS, TRANSFER, DELEGATION, OR SUBCONTRACTING
CITY INSPECTION OF CONTRACT MATERIALS
DISPOSITION OF CONTRACT MATERIALS

PUBLIC RECORDS LAW, COPYRIGHTS, AND PATENTS
FINAL ACCEPTANCE

TAXES

NON-WAIVER OF TERMS AND CONDITIONS

RIGHTS AND REMEDIES

PROHIBITED INTERESTS

THIRD PARTY INTERESTS AND LIABILITIES
SURVIVAL OF RIGHTS AND OBLIGATIONS
SEVERABILITY

MODIFICATION OF CONTRACT AND ENTIRE AGREEMENT

CHOICE OF LAW AND VENUE

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General Terms and Conditions

DEFINITIONS Unless otherwise required by the context, "Consultant”, and its successors,
transferees and assignees (together “Consultant”) includes any of the Consultant's consultants,
sub consultants, contractors, and subcontractors

CONSULTANT STATUS The parties agree that Consultant shall have the status of and shall
perform all work under this contract as a Consultant, maintaining control over all its consultants,
sub consultants, contractors, or subcontractors. The only contractual relationship created by this
contract is between the City of Nashua and Consultant, and nothing in this contract shall create
any contractual relationship between the City of Nashua and Consultant's consultants, sub
consultants, contractors, or subcontractors. The parties also agree that Consultant is not a City of
Nashua employee and that there shall be no:

(1) Withholding of income taxes by the City of Nashua:

(2) Industrial insurance coverage provided by the City of Nashua;

(3) Participation in group insurance plans which may be available to employees of
the City of Nashua;

(4) Participation or contributions by either the Consultant or the City of Nashua to
the public employee’s retirement system;

(5) Accumulation of vacation leave or sick leave provided by the City of Nashua;

(6) Unemployment compensation coverage provided by the City of Nashua.

STANDARD OF CARE Consultant shall be responsible for the professional quality, technical
accuracy, timely completion, and coordination of all work performed under this. contract.
Consultant warrants. that all work shall be performed with the degree of professional skill, care,
diligence, and sound practices and judgment that are normally exercised by recognized
professional firms with respect to services of a similar nature. It shall be the duty of Consultant
to assure at its own expense that all work is technically sound and in conformance with all
applicable federal, state, and local laws, statutes, regulations, ordinances, orders, or other
requirements. In addition to all other rights which the City of Nashua may have, Consultant shall,
at its own expense and without additional compensation, re-perform work to correct or revise any
deficiencies, omissions, or errors in the work or the product of the work or which result from
Consultant's failure to perform in accordance with this standard of care. Any approval by the
City of Nashua of any products or services furnished or used by Consultant shall not in any way
relieve Consultant of the responsibility for professional and technical accuracy and adequacy of
its work. City of Nashua review, approval, or acceptance of, or payment for any of Consultant's
work under this contract shall not operate as a waiver of any of the City of Nashua's rights or
causes of action under this contract, and Consultant shall be and remain liable in accordance with
the terms of the contract and applicable law.

Consultant shall furnish competent and skilled personnel to perform the work under this contract.
The City of Nashua reserves the right to approve key personnel assigned by Consultant to
perform work under this contract. Approved key personnel shall not be taken off of the project
by Consultant without the prior written approval of the City of Nashua, except in the event of
termination of employment. Consultant shall, if requested to do so by the City of Nashua, remove
from the job any personnel whom the City of Nashua determines to be incompetent, dishonest, or
uncooperative.

CITY OF NASHUA REPRESENTATIVE The City of Nashua may designate a City of Nashua
representative for this contract. If designated, all notices, project materials, requests by

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time, a full and complete disclosure of the interest shall be immediately made in writing to
the City of Nashua. DesignLAB also warrants that it presently has no interest and that it
will not acquire any interest, direct or indirect, which would conflict in any manner or
degree with the performance of services required to be performed under this contract.
DesignLAB further warrants that no person having such an interest shall be employed in
the performance of this contract. If City of Nashua determines that a conflict exists and
was not disclosed to the City of Nashua, it may terminate the contract at will or for cause
in accordance with paragraph 8.

In the event DesignLAB (or any of its officers, partners, principals, or employees acting
with its authority) is convicted of a crime involving a public official arising out or in
connection with the procurement of work to be done or payments to be made under this
contract, City of Nashua may terminate the contract at will or for cause in accordance with
paragraph 8. Upon termination, DesignLAB shall refund to the City of Nashua any profits
realized under this contract, and DesignLAB shall be liable to the City of Nashua for any
costs incurred by the City of Nashua in completing the work described in this contract. At
the discretion of the City of Nashua, these sanctions shall also be applicable to any such
conviction obtained after the expiration or completion of the contract.

DesignLAB warrants that no gratuities (including, but not limited to, entertainment or gifts)
were offered or given by DesignLAB to any officer or employee of the City of Nashua with
a view toward securing a contract or securing favorable treatment with respect to the
awarding or amending or making of any determinations with respect to the performance of
this contract. If City of Nashua determines that such gratuities were or offered or given, it
may terminate the contract at will or for cause in accordance with paragraph 8.

The rights and remedies of this section shall in no way be considered for be construed as a
waiver of any other rights or remedies available to the City of Nashua under this contract
or at law.

THIRD PARTY INTERESTS AND LIABILITIES The City of Nashua and DesignLAB,
including any of their respective agents or employees, shall not be liable to third parties for
any act or omission of the other party. This contract is not intended to create any rights,
powers, or interest in any third party and this agreement is entered into for the exclusive
benefit of the City of Nashua and DesignLAB.

SURVIVAL OF RIGHTS AND OBLIGATIONS The rights and obligations of the parties that by
their nature survive termination or completion of this contract shall remain in full force and
effect.

SEVERABILITY In the event that any provision of this contract is rendered invalid or
unenforceable by any valid act of Congress or of the New Hampshire legislature or any
court of competent jurisdiction, or is found to be in violation of state statutes or regulations,
the invalidity or unenforceability of any particular provision of this contract shall not affect
any other provision, the contract shall be construed as if such invalid or unenforceable
provisions were omitted, and the parties may renegotiate the invalid or unenforceable
provisions for sole purpose of rectifying the invalidity orunenforceability.

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Consultant, and any other communication about the contract shall be addressed or be delivered to
the City of Nashua Representative.

CHANGES TO SCOPE OF WORK The City of Nashua may, at any time, by written order, make
changes to the general scope, character, or cost of this contract and in the services or work to be
performed, either increasing or decreasing the scope, character, or cost of Consultant's
performance under the contract. Consultant shall provide to the City of Nashua within 10
calendar days, a written proposal for accomplishing the change. The proposal for a change shall
provide enough detail, including personnel hours for each sub-task and cost breakdowns of tasks,
for the City of Nashua to be able to adequately analyze the proposal. The City of Nashua will
then determine in writing if Consultant should proceed with any or all of the proposed change. If
the change causes an increase or a decrease in Consultant's cost or time required for performance
of the contract as a whole, an equitable adjustment shall be made and the contract accordingly
modified in writing. Any claim of Consultant for adjustment under this clause shall be asserted in
writing within 30 days of the date the City of Nashua notified Consultant of the change.

When Consultant seeks changes, Consultant shall, before any work commences, estimate their
effect on the cost of the contract and on its schedule and notify the City of Nashua in writing of
the estimate. The proposal for a change shall provide enough detail, including personnel hours
for each sub-task and cost breakdowns of tasks, for the City of Nashua to be able to adequately
analyze the proposal. The City of Nashua will then determine in writing if Consultant should
proceed with any or all of the proposed change.

Except as provided in this paragraph, Consultant shall implement no change unless the City of
Nashua in writing approves the change. Unless otherwise agreed to in writing, the provisions of
this contract shall apply to all changes. The City of Nashua may provide verbal approval of a
change when the City of Nashua, in its sole discretion, determines that time is critical or public
health and safety are of concern. Any verbal approval shall be confirmed in writing as soon as
practicable. Any change undertaken without prior City of Nashua approval shall not be
compensated and is, at the City of Nashua's election, sufficient reason for contract termination.

CITY OF NASHUA COOPERATION The City of Nashua agrees that its personnel will cooperate
with Consultant in the performance of its work under this contract and that such personnel will be
available to Consultant for consultation at reasonable times and after being given sufficient
advance notice that will prevent conflict with their other responsibilities. The City of Nashua also
agrees to provide Consultant with access to City of Nashua records in a reasonable time and
manner and to schedule items that require action by the Board of Public Works and Finance
Committee in a timely manner. The City of Nashua and Consultant also agree to attend all
meetings called by the City of Nashua or Consultant to discuss the work under the Contract, and
that Consultant may elect to conduct and record such meetings and shall later distribute prepared
minutes of the meeting to the City of Nashua.

DISCOVERY OF CONFLICTS, ERRORS, OMISSIONS, AMBIGUITIES, OR DISCREPANCIES
Consultant warrants that it has examined all contract documents, has brought all conflicts, errors,
discrepancies, and ambiguities to the attention of the City of Nashua in writing, and has
concluded that the City of Nashua's resolution of each matter is satisfactory to Consultant. All
future questions Consultant may have concerning interpretation or clarification of this contract
shall be submitted in writing to the City of Nashua within 10 calendar days of their arising. The
writing shall state clearly and in full detail the basis for Consultant's question or position. The
City of Nashua representative shall render a decision within 15 calendar days. The City of
Nashua's decision on the matter 1s final. Any work affected by a conflict, error, omission, or
discrepancy which has been performed by Consultant prior to having received the City of
Nashua's resolution shall be at Consultant's risk and expense. At all times, Consultant shall carry
on the work under this contract and maintain and complete work in accordance with the
requirements of the contract or determination of the City of Nashua. Consultant is responsible for

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requesting clarification or interpretation and is solely liable for any cost or expense arising from
its failure to do so.

TERMINATION OF CONTRACT

A. TERMINATION, ABANDONMENT, OR SUSPENSION AT WILL. The City of Nashua, in its sole
discretion, shall have the right to terminate, abandon, or suspend all or part of the project and
contract at will. If the City of Nashua chooses to terminate, abandon, or suspend all or part of the
project, it shall provide Consultant 10 day’s written notice of its intent to do so.

If all or part of the project is suspended for more than 90 days, the suspension shall be treated as a
termination at will of all or part of the project and contract.

Upon receipt of notice of termination, abandonment, or suspension at will, Consultant shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.
Place no further orders or subcontracts for materials, services, or facilities, other than as
may be necessary or required for completion of such portion of work under the contract
that is not terminated.

3. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of Nashua of all orders or subcontracts to the extent they relate
to the performance of work terminated, abandoned, or suspended under the notice,
assign to the City of Nashua any orders or subcontracts specified in the notice, and
revoke agreements specified in the notice.

4. Not resume work after the effective date of a notice of suspension until receipt of a
written notice from the City of Nashua to resume performance.

In the event of a termination, abandonment, or suspension at will, Consultant shall receive all
amounts due and not previously paid to Consultant for work satisfactorily completed in
accordance with the contract prior to the date of the notice and compensation for work thereafter
completed as specified in the notice. No amount shall be allowed or paid for anticipated profit on
unperformed services or other unperformed work.

B. TERMINATION FOR CAUSE This agreement may be terminated by the City of Nashua on 10
calendar day’s written notice to Consultant in the event of a failure by Consultant to adhere to any
or all the terms and conditions of the contract or for failure to satisfactorily, in the sole opinion of
the City of Nashua, to complete or make sufficient progress on the work in a timely and
professional manner. Consultant shall be given an opportunity for consultation with the City of
Nashua prior to the effective date of the termination. Consultant may terminate the contract on
10 calendar days written notice if, through no fault of Consultant, the City of Nashua fails to pay
Consultant for 45 days after the date of approval by the City of Nashua of any Application for
Payment.

Upon receipt of notice of termination for cause, Consultant shall:

1. Immediately discontinue work on the date and to the extent specified in the notice.

2. Provide the City of Nashua with a list of all unperformed services.

3. Place no further orders or sub-contracts for materials, services, or facilities, other than
as may be necessary or required for completion of such portion of work under the
contract that is not terminated.

4. Immediately make every reasonable effort to obtain cancellation upon terms
satisfactory to the City of Nashua of all orders or sub contracts to the extent they relate
to the performance of work terminated, abandoned, or suspended under the notice,

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assign to the City of Nashua any orders or sub contracts specified in the notice, and
revoke agreements specified in the notice.

5. Not resume work after the effective date of a notice of termination unless and until
receipt of a written notice from the City of Nashua to resume performance.

In the event of a termination for cause, Consultant shall receive all amounts due and not
previously paid to Consultant for work satisfactorily completed in accordance with the contract
prior to the date of the notice, less all previous payments. No amount shall be allowed or paid for
anticipated profit on unperformed services or other unperformed work. Any such payment may
be adjusted to the extent of any additional costs occasioned to the City of Nashua by reasons of
Consultant's failure. Consultant shall not be relieved of liability to the City of Nashua for
damages sustained from the failure, and the City of Nashua may withhold any payment to the
Consultant until such time as the exact amount of damages due to the City of Nashua is
determined, All claims for payment by the Consultant must be submitted to the City of Nashua
within 30 days of the effective date of the notice of termination.

If after termination for the failure of Consultant to adhere to any of the terms and conditions of
the contract or for failure to satisfactorily, in the sole opinion of the City of Nashua, to complete
or make sufficient progress on the work in a timely and professional manner, it is determined that
Consultant had not so failed, the termination shall be deemed to have been a termination at will.
In that event, the City of Nashua shall, if necessary, make an adjustment in the compensation paid
to Consultant such that Consultant receives total compensation in the same amount as it would
have received in the event of a termination-at-will.

C. GENERAL PROVISIONS FOR TERMINATION Upon termination of the contract, the City of
Nashua may take over the work and prosecute it to completion by agreement with another party
or otherwise. In the event Consultant shall cease conducting business, the City of Nashua shall
have the right to solicit applications for employment from any employee of the Consultant
assigned to the performance of the contract.

Neither party shall be considered in default of the performance of its obligations hereunder to the
extent that performance of such obligations is prevented or delayed by any cause, existing or
future, which is beyond the reasonable control of such party. Delays arising from the actions or
inactions of one or more of Consultant's principals, officers, employees, agents, subcontractors,
consultants, vendors, or suppliers are expressly recognized to be within Consultant's control.

DISPUTE RESOLUTION ‘The parties shall attempt to resolve any dispute related to this contract
as follows. Either party shall provide to the other party, in writing and with full documentation to
verify and substantiate its decision, its stated position concerning the dispute. No dispute shall be
considered submitted and no dispute shall be valid under this provision unless and until the
submitting party has delivered the written statement of its position and full documentation to the
other party. The parties shall then attempt to resolve the dispute through good faith efforts and
negotiation between the City of Nashua Representative and a Consultant Representative. At all
times, Consultant shall carry on the work under this contract and maintain and complete work in
accordance with the requirements of the contract or determination or direction of the City of
Nashua. If the parties are unable to resolve their dispute as described above within 30 days, the
parties may request that the dispute be submitted to the Board of Public Works for resolution. If
the parties are dissatisfied with the decision of the Board of Public Works, the parties’ reserve the
right to pursue any available legal and/or equitable remedies for any breaches of this contract
except as that right may be limited by the terms of this contract.

NO DAMAGES FOR DELAY Apart from a written extension of time, no payment, compensation,

or adjustment of any kind shall be made to Consultant for damages because of hindrances or
delays in the progress of the work from any cause, and Consultant agrees to accept in full

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